delivered the opinion of the court; the Chief Justice absent: This suit was originally commenced before a Justice of the Peace, upon an open account. Judgment was rendered in favor of Pennywit, from which Phillips appealed to the Circuit Court. On the trial before that court, the appellant moved as in case of a non-suit, but the court overruled the motion; which opinion was excepted to, and this writ of error prosecuted to reverse the judgment below. The bill of exceptions contains all the evidence adduced on the trial, and the assignment of errors questions the correctness of the decision of the Circuit Court, in overruling the defendant’s motion as in case of a nonsffiÉ The proof is, that at the time the cause of action accrued, and of bringing the suit, Yeatman was part owner with Pennywit rin the steamboat JYeosho, and as such owner, beneficially interested in the event of the suit: but that Pennywit was the master of the boat, and it was entered in port in his name, and all its transactions, contracts, and writings were carried on by Pennywit alone, and in his name.
It is said that as the suit is for freight, it cannot be maintained in Pennywit’s name alone, for Yeatman is part owner of the steamboat with him, and ought to have joined in the action.
In genera], all actions upon- contracts, whether express or implied, or whether by parole, or under seal, or of record, must be brought in the name of the parties legally interested; and a failure to join them is good cause of demurrer, in arrest of judgment, or on writ of error; Or it may be taken advantage of by plea in abatement, or is ground of nonsuit on the trial upon the general issue. 1 Chitty Pl. 28; 1 Saunders 153; 2 Strange, 1820; 2 Starkie, 424. This principle holds good as to joint or part owners of a vessel or ship, and as to partners in its freight. Abbott on Shipping, 81, 82. There are, however, many exceptions to the rule. All ostensible partners of a firm, syho-have a legal interest in the contract, must join in the action; but dormant partners, though legally interested in the event of the suit; need not join; neither is an infant or nominal partner required to It has been held in the case of Myers vs. Edge, and George vs. Clagget and another, reported in 7 Term Rep. 137, 202, and 361, that if one partner represents himself as acting on his own account and the firm sue, they will be nonsuited; and Lord Kenyon, in Leavick vs. Shafton, 2d Esp. N. P. 468, refused to nonsuit the plaintiff, though it appeared upon the trial that one of the parties whose name was not joined in the action, was legally interested in the contract at the time it was entered into; but that fact was not known to the defendants. In the case of Loyd vs. Archibold, 2 Taun. 324; 6 Ves. 438, it is expressly decided that the nonjoinder of a dormant partner whose name appears not to be held out to the world, is not matter of non-suit; and Starkie lays it down, 1070, that the parties with whom the contract has been expressly made, may alone maintain the action, although it turn out that another person, whose name is not mentioned, is secretly interested. 3 Greenl., Bastow vs. Gray, 409.
The question then recurs, is Yeatman an ostensible or dormant partner with Penny wit, in the boat? It is true he is a joint owner, and as such interested in the freight and cargo; but all the contracts of the firm, and all its transactions were made alone by Pcnnywil, and carried on in his name, and he presents himself as the sole and ostensible partner in the management of all its concerns. Yeatman is not held out to the world as an ostensible, but as a dormant partner, and therefore the action is rightly brought. Where it appears that the name of a person is not held out to the world as one of the members of the firm, he need not be joined as co-plaintiif in the action. This principle has been repeatedly and expressly recognized in the Court of King’s Bench. 1 Starkie 25, Glassop vs. Colman; and Lord Mansfield has even gone further and declared that if a factor deliver goods on his own account, and conceals his principal’s name, and an action be brought by the principal against the buyers, that they will be allowed an offset for any demand they may have against the factor. Bailey vs. Morley, in London, Sittings 1788.
The proof set out shows that Pennywit was not only the ostensible partner of the firm, but that he represented himself as such, and that all its contracts and accounts were made solely and alone in his name; and consequently the Circuit Court rightly overruled the defendant’s motion as in case of nonsuit. The judgment must therefore be affirmed, with costs.